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Waiver of Objection: Stipulation

State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith

Issue: Whether defendant waived review of objection to admissibility of misconduct evidence by entering into a “Wallerman” stipulation.

Holding: A stipulation under State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996) (an element is conceded and the other-act isn’t admitted) waives the issue of admissibility:

¶5. We conclude that the trial court’s ruling, that other acts evidence would be admissible, did not require Frank to enter into the Wallerman stipulation. However, by entering into the stipulation and rendering the other acts evidence inadmissible, Frank waived his right to appeal the other acts ruling. We conclude that other acts evidence must be introduced at trial before a criminal defendant can argue reversible error. In any event, we agree with the State that Frank did not give up a defense by entering into the Wallerman stipulation. …¶9. Generally, when a trial court rules that certain evidence is admissible, the admission cannot be deemed prejudicial error unless the evidence actually is admitted against the party objecting to it. ….

¶14. …. Frank had a choice. He could have declined to enter into a Wallerman stipulation, thereby allowing the State to introduce the other acts evidence against him and preserving the issue of the admissibility for appellate review. Or, he could have entered into a Wallerman stipulation, thereby precluding the admission of the evidence and forfeiting his right to appellate review of the admissibility of the evidence. …

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